MARILYN J. MCNEELY, )
vs. ) Case No. 97-4835
Respondent. )
This cause came on for formal hearing before P. Michael Ruff, duly designated Administrative Law Judge of the Division of Administrative Hearings, on February 4, 1998, in Gainesville, Florida. The appearances were as follows:
For Respondent: Kelly T. Blystone, Esquire
The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination based upon her race by the disciplinary actions imposed upon her by the Respondent, her employer, because of the alleged factual events depicted in the Charge of Discrimination and Petition for Relief.
This cause arose upon the filing of a Charge of Discrimination by the Petitioner with the Florida Commission on Human Relations. The charge was originally filed on or about July 7, 1995. In the Charge of Discrimination the Petitioner alleged that she received an unsatisfactory employment performance rating on June 22, 1995. She also alleges that on April 11, 1995, she was suspended for removing records from the Respondent agency's building and place of business. She also alleges that on September 30, 1994, she was suspended for "misuse of position." She maintains that each of these employment disciplinary actions were racially motivated. She is Black.
On November 27, 1996, the Petitioner executed an Election of Rights form before the Florida Commission on Human Relations choosing that, since more than one hundred-eighty days (180) had elapsed since the Charge of Discrimination was filed, she would withdraw the charge and file a Petition for Relief so as to proceed with an administrative hearing as provided for under Section 760.11(11), Florida Statutes. That procedure was followed and ultimately the subject proceeding ensued.
The cause came on for hearing as noticed. At the hearing the Petitioner presented the testimony of twelve (12) witnesses. The Respondent produced the testimony of three (3) witnesses and forty-seven (47) exhibits, all of which were admitted into evidence without objection. Upon conclusion of the proceeding,
the parties obtained a transcript thereof and requested an extended briefing schedule. The proposed Recommended Orders or written arguments submitted by the parties have been considered in the rendition of this Recommended Order.
Twelve "Disciplinary Notices" had been given to Ms. McNeely since 1991, including four (4) suspensions lasting from one to ten days, and four (4) "Work Plans" which in essence consist of a written instructions and procedures for employee performance improvement. The Petitioner has received more than ten (10) formal evaluations, with scores ranging from a high of
7 on a scale of 1 to 10, to a low of 23 on a scale of 0 to 60, with a satisfactory rating on that scale being a rating of 30. The Petitioner received an overall rating of "satisfactory" on her most recent evaluation.
On April 18, 1991, she was warned for using her position to obtain unauthorized, confidential client information. In the course of that warning she was informed that any further misuse of her position would result in a ten
(10) day suspension or termination. She appealed this disciplinary action and it was affirmed by the Administrative Director at that time, Mr. Henry Whittier.
Ms. Linda Foy became the CDS Executive Director shortly before learning, on September 23, 1994, that the Petitioner had solicited money from a physician in Ocala, Florida, on behalf of
a local family who were facing eviction from their residence. In the course of this solicitation of funds from this private individual the Petitioner used her CDS position, name, and the
CDS telephone number in the solicitation effort. The family for whom the Petitioner solicited the funds was not enrolled in a CDS program at that time or otherwise associated with CDS. In order to be eligible for social services offered by CDS, including referrals to other agencies that help needy families, a family must be registered with a CDS program.
Ms. Foy investigated the Petitioner's actions in this incident and determined that they were unauthorized and inappropriate. It is not within the job requirements or authority of a CDS employee to request a cash donation for a family, even if that family was a CDS client family. If a CDS client family needed help with housing, CDS staff would confer with other agencies which might provide funds for housing or actually assist with providing housing. In the course of the solicitation effort the Petitioner left the physician and his office staff with the impression that the Petitioner was soliciting the funds for and on behalf of CDS. She informed them in the telephone call that she was calling from CDS and left her CDS office telephone number as a return call number. Ms. Foy, in conducting her investigation of the matter, obtained written statements from the doctor and his staff concerning the character and nature of the telephone solicitation.
Ms. Thelma Griffith is the Head Start Director. Ms. Foy discussed this matter with Ms. Griffith in the course of her investigation and learned, during the course of her investigation, of Ms. McNeely's previous disciplinary action for misuse of position. Misuse of position is classified as a
Group III offense by CDS policy. Disciplinary action for a second Group III offense ranges from a ten (10) day suspension without pay to termination of employment. Based upon the information she gathered in her investigation, Ms. Foy ultimately suspended the Petitioner for ten (10) days without pay. Ms. Griffith concurred in that suspension as being appropriate for the offense committed.
At the time she made the decision to suspend Ms. McNeely, Ms. Foy was unaware that she was Black and only learned that she was Black when she met with Ms. McNeely to actually discuss the suspension. Ms. Foy did not take this disciplinary action against Ms. McNeely because Ms. McNeely is Black.
In April 1995, the Petitioner's supervisor, Ms. Sandra Rios, told her supervisor Ms. Griffith, the Head Start Director, that certain confidential files assigned to Ms. McNeely were missing. The files, called "master files," contained confidential information regarding each child, such as abuse and health information about the children in the CDS programs. Head Start policy and regulations and CDS policies require that such
master files be maintained in a strictly confidential manner and remain at the CDS offices at all times.
Ms. Griffith directed Ms. Rios to "double-check" and ascertain that the files were missing. This was after regular business hours and Ms. McNeely had already left the building. After Ms. Rios again searched the location of the files she again informed Ms. Griffith that the files were indeed missing. Ms. Griffith instructed Ms. Rios to leave the Petitioner a note so that the Petitioner would know that both Ms. Rios and Ms. Griffith were aware that files were missing. Because the files were missing when they should have been locked up in the file cabinet the Petitioner was suspended for five (5) days by action of Ms. Rios. After consulting with Ms. Rios, Ms. Griffith concurred that the five (5) day suspension was appropriate for the offense of unauthorized removal of the confidential files.
Ms. Griffith was aware that Ms. McNeely had been working on those files to bring them up to date. Ms. Griffith did not direct Ms. McNeely to take home any files and has never authorized an employee to take the confidential master files home to complete unfinished work on them. Master files are not the same as "classroom files," which can be taken from the CDS offices to a classroom site where a particular child is located.
Ms. Griffith was unaware of any other instance where an employee had removed master files from CDS offices at the time the Petitioner was disciplined for doing so. Ms. Griffith
is unaware of any employee who has ever since removed such confidential files from CDS offices. If she were so aware she would have promptly initiated appropriate disciplinary action. Jennifer Lund is the Human Resources Manager for CDS, and is also unaware of any employee who has ever removed master files from the CDS offices. It is her policy that such a violation be promptly brought to the appropriate supervisor's attention, with her recommendation for disciplinary action consistent with past practice.
The Petitioner received a score of 25.5 out of a possible 60 on her May 16, 1995, annual evaluation. Ms. Rios, Ms. McNeely's supervisor, gave her this evaluation. After discussing the basis of the evaluation with Ms. Rios and reviewing documentation from events occurring that year, Ms. Griffith was satisfied that the evaluation was appropriate and accurate and she approved it.
The Respondent's "EEO-1" (report) for 1994, reflects that the percentage of Black employees employed by the Respondent entity is almost three (3) times the percentage of Black employees in Marion County, Florida generally. Further
56.4 percent of CDS's work force is White, where as 87.2 percent of the general Marion County work force is White. Forty-Three and sixth tenths of a percent of the CDS work force is non-White according to this report, one of whom is Ms. Griffith.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Discrimination against employees by employers on the basis of race is prohibited by Florida Law, according to Section 760.10(1)(a), Florida Statutes. Employers are prohibited from discriminating against employees for opposing any practice which is in violation of the Florida Civil Rights Act (Chapter 760, Florida Statutes) or because that person has made a Charge of Discrimination (i.e., retaliation). Section 760.10(7), Florida Statutes.
The ultimate burden of proof that discrimination has occurred lies with the Petitioner or Plaintiff in a racial discrimination claim. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981). The Florida Civil Rights Act embodied in Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964 (Federal), and accordingly, Florida courts have determined that case law interpreting Title VII of the Federal Civil Rights Act of 1964 is germain to issues arising in Florida Civil Rights Act cases. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209, (Fla. 1st DCA 1991). The case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L.Ed.2d 668 (1973), instructs that the Petitioner or Plaintiff, as the case may be, in a racial discrimination case has the initial burden of establishing a prima facie case of discrimination. In order to prove a prima facie case a plaintiff must show (1) that she is a member of a protected class; (2) that she was qualified for the position in question; (3) that she suffered an adverse employment action; (4) that the Defendant, (Respondent) treated her differently than similarly situated employees who are not members of her protected class. See Holifield v.Reno, 115 F.3d 1555 (11th Cir. 1997.
In this case, Ms. McNeely has failed to establish a prima facie case of discrimination. There is simply no evidence to show that she was treated any differently than similarly
situated employees who are not members of her protected class. Parenthetically it is noted that she actually failed to present evidence that she is a member of a protected class or that she was qualified for her position. There is no dispute, however, that she is a member of a minority group (Black). Actually, Ms. McNeely's own evidence established that she was treated exactly like a White co-worker, Danny Pauley. The Petitioner presented evidence that both Black and White employees were sometimes hired into positions at a lower rate of pay than
indicated by the appropriate pay scale. Moreover, she presented her own evidence which shows that a Black co-worker, Sonji Franklin, rather than being discriminated against verses treatment afforded to non-Black employees, was rewarded for good performance with a one-dollar per hour raise.
If the Petitioner can establish a prima facie case of discrimination the burden shifts to the Respondent to offer a legitimate, non-discriminatory reason for the disciplinary action about which the Petitioner complains. See Burdine, 450 U.S. at 252-256. The burden on the Respondent, employer, is one of production, not persuasion. The burden of persuasion always remains with the Petitioner to persuade the fact finder that the proffered reason is a pretext and that she was actually and intentionally discriminated against because of her race.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2842, 125 L.Ed.2d 407 (1993). Even if the Petitioner had
established a prima facie case of discrimination the Respondent has come forward with a legitimate, non-discriminatory reason for all of the employment actions about which the Petitioner complains.
The evidence is undisputed that the Petitioner called a local physician and, using her position at CDS, solicited money for a local family that had no connection as clients or otherwise to CDS. The evidence is also uncontested that CDS suspended the Petitioner on September 30, 1994, for misuse of her position in accordance with its regularly-adopted policies and procedures and that Ms. McNeely had previously been disciplined for misuse of position, at which time she was merely warned that further violations would result in a ten (10) day suspension.
The evidence is uncontested that CDS suspended
Ms. McNeely on April 11, 1995, for removing the confidential master files from their offices. The Petitioner presented no evidence to dispute that she removed the files or that she acted without authorization from her supervisor. Likewise there is no evidence to show that Ms. McNeely's annual evaluation score on the May 1995 evaluation was other than appropriate and accurate.
Once a legitimate, non-discriminatory reason for the employment actions in question has been offered by the employer, the McDonnell-Douglas-Burdine burden shifting analysis no longer pertains. See St. Mary's Honor Center v. Hicks, Supra. In order to prevail, the Petitioner must prove that CDS's proffered,
non-discriminatory reasons are a mere pretext for intentional discrimination. She must prove that she was intentionally discriminated against by CDS on the basis of her race. See
St. Mary's Honor Center, 125 L.Ed.2d at 422. That burden has not been met.
The Petitioner failed to present any evidence that the legitimate, non-discriminatory reasons proffered by CDS for the September 30, 1994, suspension, the April 11, 1995, suspension, or the May 16, 1995, evaluation were a pretext for what was really intentional race discrimination. Ms. McNeely did not present any evidence regarding the September 30, 1994, suspension. She failed to present any relevant evidence regarding the removal of master files from the CDS offices which led to the April 11, 1995, suspension. The Petitioner failed to present any evidence that her May 1995 evaluation was either inaccurate or inappropriate, although she disputes it.
Further, the Petitioner failed to present any evidence that the Respondent intentionally discriminated against her because she is Black. She attempted to present evidence of a continuing pattern of discrimination since 1991, with testimony to the effect that then Executive Director Roann Moreno, and the then Administrative Director Henry Whittier, wanted her terminated from employment. However, rather than establish a continuing pattern of discrimination, the Petitioner's evidence rather established that the earlier management team did not like Ms. McNeely's performance, thought she was a trouble maker and disapproved of her performance because she was injecting ideas into the operation of CDS gained from other places where she had worked. She failed to establish that those beliefs on the part of those supervisory managers had anything to do with
Ms. McNeely's race. She failed to establish any race discrimination in 1991, nor any continuing pattern of race discrimination arising out of the events in 1991, and she failed to establish that she was a victim of racial discrimination in 1994 and 1995, in the face of the employer's overwhelmingly preponderant demonstration that the disciplinary events in question and actions taken were justified by Ms. McNeely's own sub-standard performance and outright violation of the policies, procedures, and standards of conduct attendant to her employment position.
Accordingly, in consideration of the foregoing Findings of Fact, Conclusions of Law, the preponderant evidence of record and the pleadings and arguments of the parties, it is therefore
That a Final Order be entered determining that the Petitioner has failed to meet her burden of proof to establish that she was a victim of racial discrimination and accordingly, that the Petition should be dismissed.
DONE AND ENTERED this 18th day of June, 1998, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1998.
Kelly Blystone, Esquire Moran and Shams, P. A.
Marilyn J. McNeely
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
